Sep 13 2011

Little Brothers Are Watching: The Example of Massachusetts

Dr. Q

By Nancy Murray and Kade Crockford, Truthout and ACLU Massachusetts

This article was written as part of the Ten Years Later: Surveillance in the ‘Homeland’ project by Truthout and the American Civil Liberties Union of Massachusetts which the two organization describe as “a series of critical analyses and investigative pieces related to privacy, homeland security and surveillance” written for the 10 years since the 9/11 terrorist attacks. It was copied from this source.

Early in the morning on March 13, 2008, Australian-born Peter Watchorn, one of the world’s foremost harpsichordists, was standing on a subway platform in Cambridge, Massachusetts, with a professional cellist from Australia who had his instrument with him. They were on their way to Logan International Airport to catch a plane.

After going a few stops, all the trains in the Massachusetts Bay Transportation Authority (MBTA) subway system were brought to a halt while theirs was searched with sniffer dogs. They thought they still could make their plane when their train started up again and they made it to the connecting bus. But before they reached their terminal, they were hauled off the bus and subjected to an abusive search – by no fewer than eight officers – during which the cello, valued at $250,000, was nearly tipped out of the case.

After they were interrogated for 30 more minutes, one state trooper told them they had been overheard at the Cambridge station, “having conversations we were not supposed to be having.” They missed their plane and never got any kind of apology from the police. The incident left Watchorn wondering whether he had done the right thing becoming an American citizen.

On the basis of an anonymous tip – possibly a hoax, or maybe just an overreaction from a well-intentioned “if you see something, say something” citizen spy – the MBTA police decided that these travelers posed a “credible threat.” The MBTA had been preparing for years to disrupt such threats by creating a robust intelligence unit that partners with the fusion center, the Joint Terrorism Task Force (JTTF), numerous other state and federal agencies including Immigration and Customs Enforcement (ICE), the Drug Enforcement Administration (DEA), and the Metropolitical Transportation Authority (MTA) Interagency Counterterrorism Task Force in New York City. By 2005, the unit was maintaining 14 stand-alone databases to track all suspicious activity and crime, information which was forwarded directly to the JTTF. It had a weekly bulletin, “Reporting on Terrorism-Related Activity,” that was disseminated across the nation, and it was working with Raytheon and Draper Labs to develop special software to track people, since the facial recognition software available at that time was not effective in the subways.[1]

The MBTA had also introduced a “Security Inspection Program” to search passengers on a random basis at the time of the 2004 Democratic National Convention and made it permanent in October 2006. Even as the subway infrastructure deteriorated and the MBTA ran out of funds to pay injury and damage claims, groups of four or five transit officers were paid to “deter terrorists” by inspecting the bags of randomly selected passengers at various stations on a rotating basis – activity that security expert Bruce Schneier calls “security theater.” The MBTA also announced the deployment of “behavior recognition teams” with the authority to stop anyone anywhere for unspecified reasons.

The airport to which the musicians were heading piloted such teams shortly after two of the planes involved in the 9/11 attacks took off from its runways. The American Civil Liberties Union (ACLU) challenged the precursor of the Screening of Passengers by Observation Techniques program (SPOT) when the head of its national Campaign against Racial Profiling – a tall African-American man with a beard – was spotted behaving “suspiciously” by talking on a pay phone after deboarding an airplane. A jury agreed that he had been wrongly detained.

Evidence that “behavioral profiling” is just another term for racial profiling did not prevent SPOT from being rolled out at other airports, at a cost of some $400 million. In a 2010 report, the Government Accountability Office (GAO) claimed the program had no scientific validity and caught no terrorists, despite the fact that some 16 individuals alleged to be involved in terrorist plots (including the would-be Times Square bomber, Faisal Shahzad) moved through airports deploying SPOT on at least 23 occasions.[2]

Nevertheless, an additional $1 billion was designated for the next version of SPOT, which was unveiled at Logan beginning in August 2011. It involves the Israeli-style screening of passengers who are asked questions to see if they seem unduly nervous or display evidence of Orwell’s “facecrime.”[3] The $14 billion spent by the Transportation Security Administration (TSA) on airport security has been handed over to dozens of contractors, with little attention paid to what actually works, and even less to notions of privacy and the Fourth Amendment’s ban on unreasonable searches – especially in the case of “backscatter” whole-body screening, which is bringing a hefty commission to the company headed by former Department of Homeland Security (DHS) chief Michael Chertoff.

What are the chances that Watchorn and his fellow musician now have a permanent record of being regarded as “credible threats”? Given what the ACLU of Massachusetts has been able to discover through its multiple public records requests, it seems quite likely. For Massachusetts, which has received at least $170 million from the DHS for surveillance-related programs, has been at the forefront of efforts to build the new, data-hungry intelligence apparatus, thanks to the efforts of its governor from 2003 to 2007, Mitt Romney.

As lead governor on homeland security issues at the National Governors Association and a member of the DHS Homeland Security Advisory Council, Romney was ardent about enlisting the public “to be on the lookout for information which may be useful” and expanding government surveillance: “Are we wiretapping, are we following what’s going on, are we seeing who’s coming in, who’s coming out, are we eavesdropping, carrying out surveillance on those individuals that are coming from places that have sponsored domestic terror?”[4]

So, it is not surprising that Massachusetts had two of the earliest fusion centers in the country. The Commonwealth Fusion Center (CFC) was established under the supervision of the state police in 2004 without any public notice or legislative process. The Boston Regional Intelligence Center (BRIC) was set up the following year, also under cover of official silence.

The CFC, which soon moved from a terrorism focus to an “all hazards, all threats, all crimes” mission, is staffed by members of the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Massachusetts National Guard, the US Army Civil Support Team, the DEA, the Department of Correction, the DHS Office of Intelligence Analysis, the Geographic Information Systems Department and at least one private corporation, CSX Railroad. In addition, local police officers with security clearance work at the CFC.

Under the CFC standard operating procedures, police officers attached to the CFC behave more like FBI agents than local cops. They are permitted to conduct “preliminary inquiries,” during which “all lawful investigative techniques may be used” (including the use of undercover operatives or informants) without reasonable suspicion that a target is involved in criminal activity.[5] If they go undercover “to attend meetings that are open to the public for purpose of observing and documenting events,” they are not required to identify themselves or leave the gathering if it is requested that police officers make themselves known, and they don’t have to leave the room if legal advice is being given.

The CFC shares data with local police departments, with state police in other states, with various state agencies and through the national Information Sharing Environment (ISE) with federal and state agencies around the country. Its personnel have been granted clearance by the DHS and the FBI to access classified information.

BRIC is under the supervision of the Boston police and staffed by the MBTA transit police, employees from various local police departments, the Suffolk County Sheriff’s Office and various business interests. A pioneer of Suspicious Activity Reporting (SAR), the Boston Police Department, through BRIC, shares information with the CFC and the FBI, and has entered into information-sharing agreements with agencies as far away as Orange County, California via COPLINK, police information-sharing software designed to “generate leads” and “perform crime analysis.”

Massachusetts has developed other databases to aid information-sharing. Among them is “MassGangs,” which collects a vast range of personal and associational information on anyone and everyone who could be a member of a “gang” – defined as an “association or group of two [emphasis added] or more persons, whether formal or informal, whose members or associates engage, either individually or collectively, in criminal activity.”[6] There is also SWISS (the Statewide Information Sharing System), which enables multiple agencies to contribute police reports in real time to a state repository and then access and search reports remotely through a computer. The database creates a permanent record not only of arrests, but of all incidents based on “calls to service” – from fighting neighbors to a barking dog – as well as information about each time a police officer stops someone on the street and makes a search.[7]

As the CFC and BRIC steadily expand the number of public and private sources from which they collect information and the mountain of data grows ever larger, accessing agencies have less knowledge about the kind and quality of information that they retrieve. The CFC disclaims any responsibility for the accuracy of the data it collects and shares. Its privacy policy does more to shield its operations from public scrutiny than it does to protect individual privacy, and it creates no enforceable rights.[8] Without any independent oversight mechanism or public reporting, Massachusetts’ fusion centers have been left to police themselves, even though they have every incentive – as well as the stated intention – to sidestep laws they find inconvenient.

The public is not just being left in the dark about the operation of fusion centers.  It has little solid information about the network of DHS-funded surveillance cameras that has been installed in cities and towns of the Greater Boston Urban Area Security Initiative. These powerful cameras have the capacity to pan, tilt, and zoom, rotate 360 degrees in a fraction of a second, and “see” for a mile. They could eventually be fitted with facial recognition software, eye scans, radio frequency identification tags, and other forms of software, and connected to large law enforcement databases – if they are not already.

Like other states and cities, Massachusetts and Boston law enforcement officials have received federal funding for a broad range of other surveillance-related technologies. Some, at first glance, may seem like sensible policing tools. For instance, automatic license plate readers – provided to state and local police through a federal Department of Transportation grant – can help police spot stolen cars and parking violators.

But they also capture digital images of thousands of license plates per minute and store this information in databases, along with travel information indicating the time and place a particular vehicle was “pinged.” In Massachusetts, this information is required to be submitted to the state’s criminal justice information services database, which can be freely accessed by other states’ and federal law enforcement. Absent a formal policy on data retention and sharing – which the state does not have – the personal travel information of millions of Massachusetts residents can be shared with agencies throughout the nation.

Massachusetts police may soon have an even more powerful tool at their disposal –  if they do not already. Imagine a database containing billions of data entries on millions of people, including (but not limited to) their bank and telephone records, email correspondence, biometric data like face and iris scans, web habits and travel patterns. Imagine this information being packaged “to produce meaningful intelligence reports” and made accessible via a web browser from a handheld mobile or police cruiser laptop.

In 2003, the Massachusetts State Police put out a request for proposals to create just such an “Information Management System” (IMS). In May 2005, they awarded a $2.2 million contract to Raytheon to build, install, troubleshoot and maintain the IMS.[9] Welcome to policing in the age of total information awareness.

1. This information was presented by the MBTA at the Anti-Terrorism Advisory Council Meeting held on May 18, 2005, at the Moakley federal courthouse and attended by a wide array of federal (including military) and state agencies, local police, and private partners.

2. According to the GAO report, between May 2004 and 2008, 152,000 people were identified for secondary screening by SPOT teams. Of this number, 14,000 people were referred to law enforcement, resulting in 1,100 arrests – most for being “illegal aliens” or having “fraudulent documents.”

3. “It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. A nervous tic, an unconscious look of anxiety, a habit of muttering to yourself – anything that carried with it the suggestion of abnormality, of having something to hide. In any case, to wear an improper expression on your face (to look incredulous when a victory was announced, for example) was itself a punishable offense. There was even a word for it in Newspeak: facecrime, it was called.” (George Orwell, “1984”).

4. Governor Mitt Romney, speech to the Heritage Foundation, September 14, 2005.

5. Document obtained via a Freedom of Information Act (FOIA) request: Standard Operating Procedure, Commonwealth Fusion Center, Number CFC-04, effective date March 5, 2008.

6. Document obtained via a Freedom of Information Act (FOIA) request: MassGangs: Project Overview, Draft of December 14, 2007.

7. Meeting with Commonwealth Fusion Center officials, April 7, 2009.

8. Document obtained via a Freedom of Information Act (FOIA) request: CFC-05, July 1, 2006 (CFC Privacy Policy).

9. Document obtained via a Freedom of Information Act (FOIA) request: Massachusetts State Police Request for Information re: Data base software.

This work by Truthout is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.

NANCY MURRAY AND KADE CROCKFORD

Nancy Murray is director of education at ACLU Massachusetts. Kade Crockford is the ACLU Massachusetts privacy rights coordinator.


Aug 29 2011

Appeals court says there’s a clearly established right to openly record police

Dr. Q

In October, 2007, attorney Simon Glik was walking through the Boston Common when he saw three police officers struggling with a man. Glik, who believed the police were using excessive force, stood about ten feet away and began recording the police with his cell phone camera.

After the police had put the man in handcuffs, one of the officers told Glik “I think you have taken enough pictures.”

Glik told the officers “I am recording this. I saw you punch him.”

One of the police approached Glik and asked him if his cell phone recorded audio as well as video. When Glik responded in the affirmative, the police arrested him, took his cell phone, and charged him with felony wiretapping, disturbing the peace, and aiding in the escape of a prisoner.

The prosecutor for Glik’s case dropped the aiding in the escape of a prisoner charge and Municipal Court Justice Mark Summerville dismissed the two remaining charges, noting that while the “officers were unhappy they were being recorded during an arrest… their discomfort does not make a lawful exercise of a First Amendment right a crime.”

After Glik was cleared of the unjust charges, the American Civil Liberties Union of Massachusetts filed a federal lawsuit against the three officers who arrested him and the City of Boston on behalf of Glik. The suit alleges that the three officers, John Cunniffe, Peter Savalis, and Jerome Hall-Brewster, violated Glik’s First Amendment rights by arresting him for recording them and his Fourth Amendment rights by arresting him without probable cause that he committed a crime.

The officers attempted to have Glik’s lawsuit dismissed on the grounds that they were entitled to “qualified immunity,” a legal privilege that shields certain government officials from liability when they violate the rights of others if they can show that a reasonable person would have done that same thing if in their shoes. The officers argued that it was reasonable to arrest Glik and charge him with wiretapping “because it is not well-settled that he had a constitutional right to record the officers.”

The officers’ motion to dismiss the lawsuit was rejected by a district court judge, but the officers were allowed to appeal.

The results of the appeal came back on August 26, when the First Circuit appeals court issued a unanimous ruling. Like the district court, the First Circuit rejected the officers’ claim of qualified immunity, noting that the right to openly record police in Massachusetts is firmly established and that the officers should have been aware of this. As the court wrote in its ruling (.pdf format):

The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” … An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.'” …

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.”

The appeals court ruling is a real victory. Not only will Glik be permitted to move forward with his lawsuit, but now judges will be less likely to entertain wiretapping cases and police will be more likely to face lawsuits, under both the first and fourth amendments, if they arrest videographers.

However, the Massachusetts wiretapping statute will still be problematic for people who support police accountability. Although the right to openly record police has been firmly established, the currently accepted interpretation of the wiretapping statute criminalizes “secretly” recording police even when they are on duty and in public places like the Boston Common. In the case Commonwealth v. Hyde (2001), the Massachusetts Supreme Court ruled that Michael Hyde, a musician, violated the state’s wiretapping law when he recorded a police traffic stop with a tape recorder hidden in his car. The Supreme Court ruled that even though Hyde’s recording was made in a public place, it was created in “secret” because Hyde concealed his tape recorder. The court noted that he could have avoided his conviction if he “had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.”

The right to make “secret” recordings of police is just as important as the right to make recordings of police “in plain sight.” If a police officer is willing to commit a serious crime like making a false arrest or beating someone, it’s not likely that their moral compass will prevent them from destroying evidence. Hiding a recording device in one’s pocket may be the only hope a victim of police brutality or misconduct has for getting accountability. Until a court overturns the decision in Hyde, the Legislature changes the wiretapping law to allow “secret” recording, or voters pass a ballot initiative to change the law, Massachusetts residents will continue to live in fear that they will be prosecuted and imprisoned simply for trying to hold the police accountable.


Aug 19 2011

ACLU and NLG sue Boston police for refusing to reveal surveillance policy

Dr. Q

Yesterday, the American Civil Liberties Union of Massachusetts and the National Lawyers Guild of Massachusetts announced that they are suing the Boston Police Department to force them to disclose their policy on surveillance of political activists. The ACLU, NLG, and other groups have made numerous requests for these documents under the Massachusetts public records law, but the Boston Police Department has repeatedly refused to release them to the public.

You can read the ACLU’s press release for the lawsuit here:

In a move to compel disclosure of information that has been withheld from the public about the Boston Police Department’s expanded surveillance operations, including the scope of its monitoring of political activities, the American Civil Liberties Union of Massachusetts and the National Lawyers Guild of Massachusetts have filed suit on behalf of eight Boston-area political groups and four individual activists, seeking public disclosure of records detailing the BPD’s practice of monitoring political organizations and activists.

The suit, filed under the Massachusetts Public Records law, seeks disclosure of BPD records regarding the Department’s surveillance and recording of protest activities and assemblies, the monitoring of political groups and activists, as well as records relating to the collection and sharing of information with the Department of Homeland Security and other government agencies.

“There have been significant changes in the surveillance operations of the BPD,” said Laura Rótolo, ACLU of Massachusetts staff attorney. “For years, the BPD has conducted surveillance of political protests, openly recording legal rallies, marches and demonstrations in public areas. But now that information can be centrally monitored, indexed, and stored electronically, and shared through state and national surveillance networks. We brought this suit because we believe the public should know what information is being collected about political activities, how it is being used, and what policies, if any, are in place to protect privacy and individual liberty.”

The plaintiffs are organizations and individuals whose previous requests for information on surveillance practices and privacy protections have been rejected by the BPD, including: the ACLU of Massachusetts, Political Research Associates, the National Lawyers Guild of Massachusetts, Veterans for Peace–Chapter 9 Smedley Butler Brigade, CodePink of Greater Boston, the Boston Coalition for Palestinian Rights, the Greater Boston Stop the Wars Coalition, and United for Justice with Peace. The four individual plaintiffs seeking information about BPD surveillance practices were detained and interrogated by the BPD in 2009 following a non-violent protest at the Israeli consulate in Boston. Although officers acknowledged during their interrogation that the activists had been under surveillance at previous political protests, the BPD subsequently asserted that it had no record of interrogating them.

“The public has a right to know the scope of surveillance of protected First Amendment activity,” said David Kelston, an attorney who represents the National Lawyers Guild of Massachusetts and represented the four individual activists who were detained and questioned. “The BPD’s claim that they have no record of interrogating these activists defies belief and must be challenged.”

This action seeks information on the surveillance policies and practices of the Boston Regional Intelligence Center (BRIC), which was created by the BPD and federal Department of Homeland Security and Department of Justice in 2005, ostensibly to collect and share information on terrorist threats and subversive activities in Boston. It also seeks public information on the BPD’s participation in the FBI’s so-called “Suspicious Activity Reporting Initiative”, a pilot program that directs local police officers to collect and share information on broadly defined “suspicious activities” that may include lawful political activity and protected political speech. It does not seek information on individual cases or investigations.

“Boston is using tax dollars to participate in what is billed as a ‘pilot program’ that authorizes local police to create dossiers on ordinary citizens, essentially criminalizing protected political activities, so why is all information about this test program hidden from the public?” said Thom Cincotta, an attorney and researcher with Political Research Associates, a Somerville-based research organization.

“Democracy dies behind closed doors,” said the ACLU’s Rótolo. “Shedding sunlight on police surveillance practices is the best way to guard against abuses of power and to ensure that law enforcement doesn’t hide behind anti-terrorism rhetoric to justify programs and practices that chill legal dissent and quash protected political speech and assembly.”

You can find documents related to the lawsuit on the Massachusetts ACLU’s website.